Publication date: 09.05.2024
The court found no reason to appoint the man as a guardian and took into account the fact that the incapacitated woman still had other relatives.
The Rivne Court of Appeal denied the applicant's request to be appointed as a guardian of his gran-dmother, who was recognized by a local court as incapacitated, as the conclusion of the board of trustees of the executive committee of the village council did not meet the requirements of the Civil Procedure Code of Ukraine regarding its validity. This was reported by the court's press service.
Moreover, the document of the self-government body does not provide any reasons for the expediency of appointing a 29-year-old grandson who is serving in the Armed Forces of Ukraine, and not one of her three children.
The applicant appealed to the Rivne Court of Appeal against the decision of the court of first instance, which partially satisfied the application for recognition of the 79-year-old grandmother as incapacitated and establishment of guardianship over her. The elderly woman was recognized as incapacitated for two years from the date of entry into force of this decision.
The request to appoint the applicant as her guardian was denied.
The decision of the local court was motivated by the fact that the submission of the guardianship authority contained only a conclusion that the applicant should be appointed as the guardian of the grandmother - without sufficient reasoning for such a conclusion, which is why it cannot be accepted by the court.
In addition, the submission does not contain information about the impossibility of the son, who lives with his mother, to fulfill the powers of a guardian.
The appellant asked to set aside the decision of the court of first instance in part of refusing to appoint him as a guardian over his grandmother and to appoint him as a guardian over her.
The Court of Appeal dismissed the applicant's appeal on the following grounds.
Based on the analysis of Article 60(1) of the Civil Code of Ukraine and Article 300(1) of the Civil Procedure Code of Ukraine, a prerequisite for the court to appoint a particular individual as a guardian over an inca-pacitated individual is the submission of the guardianship and trusteeship authority on the expediency of appointing this particular person as a guardian.
According to the conclusion of the board of trustees of the executive committee of the village council, contained in the case file, it was determined that it was appropriate to appoint the applicant as a guardian over the grandmother in case she was recognized as incapacitated.
However, this conclusion does not meet the requirement of the law as to its reasonableness, since the application does not contain any motives for the expediency of appointing this person as the guardian of the elderly woman.
In addition, the conclusion states that the applicant is serving in the Armed Forces of Ukraine under mobilization, and the case file does not contain any evidence that would indicate his discharge from the army.
In view of these circumstances, the appellate court concluded that the applicant was deprived of the op-portunity to act as a guardian of an incapacitated person during his military service, and only after demo-bilization in accordance with the procedure provided by law could he initiate the issue of appointing him as a guardian.
The court of appeal also took into account the fact that the incapacitated woman has two daughters in addition to her son, upholding the local court's decision under appeal.
And although each of them filed a statement with the court about the impossibility of caring for their mother, since one of them lives and works in the Republic of Poland, and the other is an old-age pensioner and has a poor health condition, none of them provided the court with evidence (employment and resi-dence in another country - by one and a medical report on poor health - by the other) that would prove the impossibility of the sisters caring for their incapacitated mother.
The arguments of the appeal that the court violated the requirements of the law regarding the simul-taneous resolution of the issue of declaring a person incapacitated and appointing a guardian do not deserve attention, since the decision of the Supreme Court of February 14, 2018 in case No. 545/1691/ 16-ц (proceedings No. 61-4475св18) concluded that the law does not provide for the obligation of the court to declare a person incapacitated and appoint a guardian in one trial.
Resolution of the Rivne Court of Appeal No. 572/1245/23 dated May 2, 2024 (proceedings No. 22-c/4815/512/24).
Thus, we can see that the adopted amendments to the current law were adopted taking into account changes in the requirements of the time and the imposed martial law in Ukraine, as well as the fact that a legal analysis of the situation, analysis of documents and verification of documents by a lawyer and a legal opinion were carried out.
